Daniel McNeil Hurlston v Cherian Forest-Hurlston - Ruling

¶ ```html <table> <tr> <td>IN THE GRAND COURT OF THE CAYMAN ISLANDS</td> </tr> <tr> <td>ON APPEAL FROM THE SUMMARY COURT</td> </tr> <tr> <td>CAUSE NO.</td> <td>FAM 0270 OF 2017</td> </tr> <tr> <td>(SMA 0002/2008)</td> </tr> <tr> <td>BETWEEN</td> </tr> <tr> <td>DANIEL MCNEIL HURLSTON</td> <td>APPELLANT</td> </tr> <tr> <td>AND</td> </tr> <tr> <td>CHERIAN FORREST-HURLSTON</td> <td>RESPONDENT</td> </tr> <tr> <td>Coram：</td> <td>Honourable Justice Gunn (Actg)</td> </tr> <tr> <td>Appearances：</td> <td>Miss Hayley McCall of Chapmans for the Appellant</td> </tr> <tr> <td>Ms Sheridan Brooks QC for the Respondent</td> </tr> <tr> <td>Heard：</td> <td>5th April 2018</td> </tr> <tr> <td>Ex-tempore Ruling：</td> <td>5th April 2018</td> </tr> <tr> <td>Ruling circulated：</td> <td>23rd May 2018</td> </tr> </table> <h2>Headnote</h2> <ul> <li>Summary Court Appeals - Civil Appeals - Re-hearing</li> <li>Summary Court Appeals - Civil Appeals - Drawing up of Summary Court Orders</li> <li>Summary Court Appeals - Grounds of appeal - Use of Form 8</li> </ul> <p>Sun Appeals - A.41 - whether affidavits</p> <p>Summary Court affidavits - GC to be filed for real hearing</p> <p>Ruling | 20180405 | Hon. Gunn. J (Actg) | Hurlston &amp; Hurlston</p> ```
Ruling

¶ [1] In this matter Mr Hurston seeks to appeal against the decision of Acting Magistrate Hernandez made in Summary Court proceedings (Summary Court Appeal – "the SCA"). ## The Proceedings to Date

¶ [2] For the purpose of this ruling the relevant facts are that in the course of summary proceedings under the Maintenance Law (1996 Revision) ("the ML") in 2008, Mr Hurlston ("the Appellant") and Mrs Hurlston ("the Respondent") agreed a consent order providing for the Appellant to pay child and spousal maintenance to the Respondent.

¶ [3] In 2014 the Appellant petitioned for divorce pursuant to the Matrimonial Causes Law (2005 Revision) – ("the MCL") (see FAM0060 OF 2014). Such a petition can only be heard by the Grand Court. Miss McCall represented the Appellant and Ms Brooks QC the Respondent in the divorce proceedings.

¶ [4] In September 2016, as part of the Grand Court proceedings, the Appellant filed a summons seeking a variation of the spousal maintenance to $0. Less than a week later, the Respondent filed a summons seeking to enforce arrears and that spousal maintenance should continue as "previously ordered". Both parties prepared and filed affidavits in support of their respective applications.  Ruling | 20180405 | Hon. Gunn. J (Actg) | Hurlston & Hurlston Page 2 of 12

¶ [5] The Grand Court matter came on for CMC before Williams J on 26th January 2017. The Minute of Order for that hearing records the following statement by Williams J – "In regard to any arrears that exist and the enforcement my position is the same as it has been another [sic] cases that the Summary Court arrears should be enforced in the Summary Court. As a consequence of the wife’s position1, The applications to vary or terminate the spousal maintenance prior to the final ancillary relief hearing will need to be issued in the Summary Court – the applications in relation to continuation of paying spousal support, a penal notice will also have to be dealt with in the Summary Court pending the final ancillary relief hearing."

¶ [6] The Appellant and Respondent filed summonses in the Summary Court mirroring their applications in the Grand Court. The matter came on for hearing before Acting Magistrate Hernandez on 27th October 2017. Miss McCall and Ms Brooks QC appeared for the parties. No evidence was adduced. The proceedings focused on whether the Summary Court had jurisdiction to hear an application to vary the spousal maintenance and remit the arrears after Grand Court proceedings have commenced.

¶ [7] The learned magistrate delivered her written ruling by email to counsel on 1st November 2017. In summary, the learned magistrate found that the Summary Court did not have the power to “retroactively suspend” the order for spousal maintenance, although she did order that the maintenance order is suspended going forward. She adjudged the arrears and ordered that the debt should be addressed by the Grand Court as part of the final ancillary relief order. 1 The Respondent declined to consent to the Summary Court order being dealt with as part of the Grand Court proceedings. Ruling | 20180405 | Hon. Gunn. J (Actg) | Hurlston & Hurlston Page 3 of 12
The Appeal On 15th November 2017², the Appellant submitted a document to the Registry entitled "Notice of Appeal and Stay of Execution Pending Appeal" which was within 14 days of the learned Magistrate's ruling. The document is endorsed as being received on 17th November 2017. I have not been provided with an explanation for the discrepancy; however, it is not material to the application. A hearing bundle was produced containing, amongst many documents, the Appellant's three affidavits which were filed in respect of the Grand Court divorce proceeding and the Respondent's affidavit filed in the Summary Court maintenance proceedings. At the hearing before me, Ms Brooks QC made a preliminary application for the appeal to be dismissed on the grounds that – (a) There is no order distilled from the learned magistrate's ruling from which an appeal would lie; (b) As drafted, the grounds of appeal fail to comply with section 21(1) of the Court of Appeal Law, in that that did not concisely set out the facts and law upon which the Appellant relies; (c) In light of the honourable Chief Justice's decision in Franklin v Franklin 2014(2) CILR 79, the Grand Court (whether sitting as court of first instance or as the appellate court) does not have the authority to "remit" arrears; and (d) The Appellant has failed to adduce evidence in the Summary Court and the present proceedings for the court to consider, as the Appellant's affidavits, all related to the divorce proceedings which are entirely separate SCA. Ruling | 20180405 | Hon. Gunn. J (Actg) | Hurlston & Hurlston Page 4 of 12

¶ [12] In addition, the parties were at odds as to whether a SCA of civil proceedings requires the Grand Court to review the Magistrate's findings of fact and/or the law applied, or whether the appeal is a de novo hearing of the applications which were before the Summary Court.

¶ [6] In the interests of expediency, I gave an ex tempore ruling, which I undertook to provide in writing. I do so herewith. The Law

¶ [14] Dealing with the fundamental question of the manner in which a civil SCA should proceed; Miss McCall relied on the wording of section 38 of the Summary Jurisdiction Law (2015 Revision) ("the SJL"). "Subject to these or any other law, in any civil cause or matter an appeal shall lie to the Grand Court – (a) from any final judgment or decision of the court in any proceedings; and (b) from all interlocutory orders of the court in the course of any proceedings, but no appeal shall lie, except by special leave of the court or of the Grand Court, from – (i) any judgment or decision made by consent; (ii) an award of interest only; (iii) an order for costs only; or (iv) any interlocutory order."

¶ [15] Miss McCall argued that section 38(1) provides an unconditional right of appeal from the learned magistrate's decision. The SCA should be a de novo hearing of the application. The words of O' a de novo hearing of the learned magistrate's decision. The hearing of the application give the 15(3) of the Court Rules 2004 ("S") – "An appeal shall constitute a re-hearing". Ruling | 20180405 | Hon. Gunn. J (Actg) | Hurlston & Hurlston Page 5 of 12
```html <table> <tr> <td>1</td> <td>16.</td> <td>Miss McCall also drew my attention to the passage in Deborah Barker's textbook</td> </tr> <tr> <td>2</td> <td>“Civil Litigation in the Cayman Islands” (Second Edition) at 25.2.2 -</td> </tr> <tr> <td>4</td> <td>“The appeal will take the form of a de novo hearing, that is a full re-</td> </tr> <tr> <td>5</td> <td>rehearing.”</td> </tr> <tr> <td>6</td> </tr> <tr> <td>7</td> <td>17.</td> <td>Ms Brooks QC drew my attention to Form 8 “Notice of Appeal” of the SCR. She</td> </tr> <tr> <td>8</td> <td>argued that the requirement to provide grounds for the appeal on the form</td> </tr> <tr> <td>9</td> <td>demonstrated that the intention was that the SCA is a review of the learned</td> </tr> <tr> <td>10</td> <td>magistrate's decision/reasons, rather than a re-hearing.</td> </tr> <tr> <td>11</td> </tr> <tr> <td>12</td> <td>18.</td> <td>In addition, Ms Brooks QC submitted that the learned magistrate's decision was</td> </tr> <tr> <td>13</td> <td>interlocutory only, as the ML expressly provides in section 8 that any order made in</td> </tr> <tr> <td>14</td> <td>the Summary Court under the ML “may be renewed, reviewed and varied at any time”</td> </tr> <tr> <td>15</td> <td>by that court. Given the Summary Court's power to revisit the order at any time,</td> </tr> <tr> <td>16</td> <td>decision is interlocutory and comes within the exception of section 38(iv) of the S JL.</td> </tr> <tr> <td>17</td> <td>In support of this position, Ms Brooks QC pointed to the fact that there is no express</td> </tr> <tr> <td>18</td> <td>reference to appeals in the ML.</td> </tr> <tr> <td>19</td> </tr> <tr> <td>20</td> <td>19.</td> <td>Neither party was able to produce any cases to support their contentions.</td> </tr> <tr> <td>21</td> </tr> <tr> <td>22</td> <td>20.</td> <td>I rejected Ms Brooks' argument that the learned magistrate's decision was only</td> </tr> <tr> <td>23</td> <td>an absence of express provisions in the ML for appeal cannot negate</td> </tr> <tr> <td>24</td> <td>the express provisions of the S JL governing the appeal of all summary matters.</td> </tr> <tr> <td>25</td> <td>Furthermore, the fact that an order may be renewed, reviewed or varied, does not</td> </tr> <tr> <td>26</td> <td>itself change the nature of the order from a final order to an interlocutory order.</td> </tr> <tr> <td>27</td> <td>The parties are not permitted to re-argue the same points over and over again</td> </tr> <tr> <td>28</td> <td>before the same or different magistrates until they get a satisfactory result. The</td> </tr> <tr> <td>29</td> <td>final until tange of c</td> </tr> <tr> <td>30</td> <td>Any objection to the making or terms of the final order in the first place would require</td> </tr> <tr> <td>31</td> <td>an appeal in accordance with the express provisions of section 38 of the S JL.</td> </tr> <tr> <td>32</td> </tr> <tr> <td>33</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>21.</td> <td>I also accepted Miss McCall's submission that a civil SCA is a de novo hearing of the</td> </tr> <tr> <td>2</td> <td>application(s) which were before the Summary Court as the SCR expressly state so</td> </tr> <tr> <td>3</td> <td>at 0.15(3).</td> </tr> <tr> <td>4</td> </tr> <tr> <td>5</td> </tr> <tr> <td>6</td> <td>Appeal procedure</td> </tr> <tr> <td>7</td> </tr> <tr> <td>8</td> <td>22.</td> <td>Counsel for both parties acknowledged that there had been procedural irregularities</td> </tr> <tr> <td>9</td> <td>following the distribution of the learned magistrates ruling. GCR O. 42 "Judgments</td> </tr> <tr> <td>10</td> <td>and Orders" applies to the Summary Court (see SCR 0.14). 0.42(4) provides that-</td> </tr> <tr> <td>11</td> </tr> <tr> <td>12</td> <td>"Subject to paragraph (2), every order of the Court shall be drawn up and</td> </tr> <tr> <td>13</td> <td>filed unless the Court otherwise directs."</td> </tr> <tr> <td>14</td> </tr> <tr> <td>15</td> <td>Paragraph 2 does not apply in this instance.</td> </tr> <tr> <td>16</td> </tr> <tr> <td>17</td> <td>23.</td> <td>GCR O. 42, r.5, in turn, provides-</td> </tr> <tr> <td>18</td> <td>"(1) The party seeking to have any judgment or order filed must draw up</td> </tr> <tr> <td>19</td> <td>the judgment or order and present it to the Clerk of Court together</td> </tr> <tr> <td>20</td> <td>with the number of copies required by paragraphs (8) and (9), as the</td> </tr> <tr> <td>21</td> <td>case may be.</td> </tr> <tr> <td>22</td> <td>(2)...</td> </tr> <tr> <td>23</td> <td>(3)...</td> </tr> <tr> <td>24</td> <td>(4)...</td> </tr> <tr> <td>25</td> <td>(5) Where more than one party has appeared in a proceeding in which a</td> </tr> <tr> <td>26</td> <td>judgment or order has been made and all those parties represented by</td> </tr> <tr> <td>27</td> <td>attorneys, the attorney for the successful party shall draw up the</td> </tr> <tr> <td>28</td> <td>judgment or order and circulate it to the attorneys for the other</td> </tr> <tr> <td>29</td> <td>parties who s it "appro</td> </tr> <tr> <td>30</td> <td>31</td> <td>32/17</td> </tr> </table>

¶ [24] Miss McCall and Ms Brooks QC conceded that they should have prepared an order for signature and filing but that they failed to do so. No reason was given.

¶ [25] SCR 0.15(1) provides that: "An appeal to the Grand Court shall be made by notice of appeal in Form 8 which must be filed within 14 days from the date upon which the judgment or order appealed from is filed in accordance with GCR 0.42, r.5."

¶ [26] Miss McCall argued that, should I now require Order 42, r.5(1) to be complied with before the appeal may proceed, she would submit the order she has prepared in the event of such a request forthwith. She pointed out that 0. 42, r.5(1) did not provide for a deadline by which an order must be filed, therefore, allowing for this particular irregularity to be corrected. Ms Brooks QC concurred that an order may still be filed.

¶ [27] I was mindful of the overriding objectives of the GCR – that the rules are intended to enable the Court to deal with every cause or matter in a just, expeditious and economical way. However, given the express provisions of GCR 0.42 and SCR 0.15(1), the requirement to file the order is a step that cannot be waived. The order, followed by the notice of appeal, triggers the appeal process. Compliance is necessary before an appeal hearing can proceed. I gave the parties leave to submit the draft order during the luncheon adjournment. Fortuitously, the learned magistrate was available to immediately review and sign the order prior to the hearing resuming after lunch. ```
```html <table> <tr> <td>1</td> <td>28.</td> <td>I rejected Ms Brooks QC's submission that the "Notice of Appeal" was defective.</td> </tr> <tr> <td>2</td> <td>Firstly, the Court of Appeal Law (2011 Revision) does not apply to SCAs - that</td> </tr> <tr> <td>3</td> <td>legislation specifically speaks to jurisdiction of the Court of Appeal, not the Grand</td> </tr> <tr> <td>4</td> <td>Court in its appellate jurisdiction. Secondly, although the Appellant's "Notice of</td> </tr> <tr> <td>5</td> <td>Appeal" was exceptionally detailed, it complied with the Form 8 template (see SCR).</td> </tr> <tr> <td>6</td> <td>In fact, given that a SCA is a re-hearing, simply endorsing "the learned magistrates</td> </tr> <tr> <td>7</td> <td>erred in fact" or "the learned magistrate erred in law" on the Form 8 would suffice.</td> </tr> <tr> <td>8</td> <td>Undoubtedly Miss McCall has spent significant time drafting this document,</td> </tr> <tr> <td>9</td> <td>however, dissecting the learned magistrates ruling and setting out alleged errors are</td> </tr> <tr> <td>10</td> <td>of little relevance for the re-hearing today. I concluded that it is not appropriate to</td> </tr> <tr> <td>11</td> <td>strike out the Appellant's notice on the grounds that it provides too much</td> </tr> <tr> <td>12</td> <td>information. However, the notice was filed before the order, and, consequently, this</td> </tr> <tr> <td>13</td> <td>was another procedural irregularity that needed to be rectified. Once again, in order</td> </tr> <tr> <td>14</td> <td>to avoid any further costs and delay, I gave leave for the same notice to be re-filed</td> </tr> <tr> <td>15</td> <td>(without amendments) along with the final order over the luncheon adjournment.</td> </tr> <tr> <td>16</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> <td>Evidence</td> </tr> <tr> <td>19</td> </tr> <tr> <td>20</td> <td>29.</td> <td>Turning to what evidence the SCA would be able to consider; it is important to note,</td> </tr> <tr> <td>21</td> <td>that, although the Appellant had prepared numerous affidavits for the Grand</td> </tr> <tr> <td>22</td> <td>Court divorce proceedings, none of them were filed in relation to the ML application.</td> </tr> <tr> <td>23</td> <td>Furthermore, the learned magistrate did not hear any evidence or consider any of</td> </tr> <tr> <td>24</td> <td>the affidavits for the purposes of her ruling. It was not necessary for me to</td> </tr> <tr> <td>25</td> <td>investigate why the proceedings in the Summary Court proceeded in that manner,</td> </tr> <tr> <td>26</td> <td>as this is a re-hearing.</td> </tr> <tr> <td>27</td> </tr> <tr> <td>28</td> <td>LAND COURT</td> <td>12/17</td> </tr> <tr> <td>30</td> <td>31</td> </tr> <tr> <td>32</td> </tr> </table> Ruling | 20180405 | Hon. Gunn. J (Actg) | Hurlston & Hurlston Page 9 of 12 ```
```html <table> <tr> <td>1</td> <td>30.</td> <td>Ms Brooks QC submitted that because the affidavits had not been filed in the</td> </tr> <tr> <td>2</td> <td>Summary Court proceedings, these were not properly before the learned magistrate</td> </tr> <tr> <td>3</td> <td>or before me on the SCA. Miss McCall submitted that once an affidavit is filed in</td> </tr> <tr> <td>4</td> <td>relation to any cause it may be used in other proceedings in any court. She argued</td> </tr> <tr> <td>5</td> <td>that this is particularly so if the relevant proceedings are concerned with the same</td> </tr> <tr> <td>6</td> <td>issue - in this instance the variation of the existing order for spousal maintenance</td> </tr> <tr> <td>7</td> <td>and remission of arrears. Furthermore, she submitted that the court could grant her</td> </tr> <tr> <td>8</td> <td>leave to nevertheless rely on the affidavits applying GCR 0.41， r.4</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> <td>“An affidavit may， with leave of the Court， be filed or used in evidence</td> </tr> <tr> <td>11</td> <td>notwithstanding any irregularity in the form thereof.”</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> <td>31. Ms Brooks QC drew my attention to section 12.1 and 2 of the Explanatory</td> </tr> <tr> <td>14</td> <td>Memorandum to the GCR -</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> <td>12.1 0.41 applies to all proceedings， including matrimonial</td> </tr> <tr> <td>17</td> <td>proceedings， winding up proceedings， bankruptcy proceedings， and civil</td> </tr> <tr> <td>18</td> <td>appeals from the summary court.</td> </tr> <tr> <td>19</td> <td>12.2 Every affidavit must comply with the formal requirements of</td> </tr> <tr> <td>20</td> <td>0.41， r.1 and 0.66， r.1"</td> </tr> <tr> <td>21</td> </tr> <tr> <td>22</td> <td>32. SCR 0.14 provides that GCR 0.41 applies to summary proceedings. Summary</td> </tr> <tr> <td>23</td> <td>proceedings are generally less formal. The use of affidavits is only mandated in</td> </tr> <tr> <td>24</td> <td>limited circumstances， e.g.， to commence certain proceedings. The use of affidavits</td> </tr> <tr> <td>25</td> <td>in civil and family summary proceedings is largely confined to instances when one</td> </tr> <tr> <td>26</td> <td>or more of the parties are legally represented. However， if affidavit evidence is to be</td> </tr> <tr> <td>27</td> <td>relied upon in such proceedings， then 0.41 must be complied with. GCR 0.41， r.1</td> </tr> <tr> <td>28</td> <td>provides that-</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>(1)</td> <td>Subject to paragraphs (2) and (3)，every affidavit sworn in a cause or matter</td> </tr> <tr> <td>2</td> <td>must be entitled in that cause or matter.</td> </tr> <tr> <td>3</td> <td>(2)</td> <td>Where a cause or matter is entitled in more than one matter，it shall be</td> </tr> <tr> <td>4</td> <td>sufficient to state the first matter followed by the words &quot;and other matters&quot;，</td> </tr> <tr> <td>5</td> <td>and where a case or matter is entitled in a matter or matters and between</td> </tr> <tr> <td>6</td> <td>parties，that part of the title which consists of the matter or matters may be</td> </tr> <tr> <td>7</td> <td>omitted.&quot;</td> </tr> <tr> <td>8</td> </tr> <tr> <td>9</td> <td>33.</td> <td>The Appellant's affidavits were not so entitled. Furthermore，GCR 0.41，r.9(1)</td> </tr> <tr> <td>10</td> <td>provides that-</td> </tr> <tr> <td>11</td> </tr> <tr> <td>12</td> <td>“Every affidavit used in a cause or matter proceedings in the Court must be filed”.</td> </tr> <tr> <td>13</td> <td>(emphasis mine).</td> </tr> <tr> <td>14</td> </tr> <tr> <td>15</td> <td>34.</td> <td>Reading paragraph 12.1 and GCR 0.41 together，it is apparent that any affidavits to</td> </tr> <tr> <td>16</td> <td>be relied upon in a SCA must be filed with the Grand Court for that purpose. If an</td> </tr> <tr> <td>17</td> <td>affidavit is to be used in more than one cause or matter，it must state this explicitly.</td> </tr> <tr> <td>18</td> </tr> <tr> <td>19</td> <td>35.</td> <td>I rejected Miss McCall's argument that the affidavit filed in other proceedings can be</td> </tr> <tr> <td>20</td> <td>used simply on the basis that it speaks to the same issue - &quot;cause&quot; or &quot;matter&quot; in this</td> </tr> <tr> <td>21</td> <td>instance refer to the proceedings not the &quot;issue&quot; to be determined.</td> </tr> <tr> <td>22</td> </tr> <tr> <td>23</td> <td>36.</td> <td>Neither the Appellant's nor the Respondent's affidavits comply with these</td> </tr> <tr> <td>24</td> <td>requirements. The court's discretion pursuant to 0.41，r.4 is with respect to</td> </tr> <tr> <td>25</td> <td>affidavits which are irregular as to their form，not the filing in the first instance.</td> </tr> <tr> <td>26</td> </tr> <tr> <td>27</td> <td>37.</td> <td>In the interests of expediency，I gave both parties leave to file the affidavits with the</td> </tr> <tr> <td>28</td> <td>necessary amendments during the luncheon adjournment so that the</td> </tr> <tr> <td>29</td> <td>substantive hearing of the appeal can the after</td> </tr> <tr> <td>30</td> <td>oon.</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>38.</td> <td>Finally, the issue of whether the Court has the power to</td> </tr> <tr> <td>2</td> <td>“remit”/“pardon”/“extinguish”/“retrospectively vary” the order for spousal</td> </tr> <tr> <td>3</td> <td>maintenance and/or arrears is a substantive issue forming part of the re-hearing.</td> </tr> <tr> <td>4</td> <td>Consequently, I will rule upon that point once I have heard full submissions from</td> </tr> <tr> <td>5</td> <td>counsel.</td> </tr> <tr> <td>6</td> </tr> <tr> <td>7</td> </tr> <tr> <td>8</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> </tr> <tr> <td>11</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> <td>THE HON. KIRSTY-ANN GUNN</td> </tr> <tr> <td>14</td> <td>ACTING JUDGE OF THE GRAND COURT</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> </tr> </table> ``` ```latex \documentclass{article} \usepackage{geometry} \usepackage{graphicx} \usepackage{hyperref} \section{38.} Finally, the issue of whether the Court has the power to ``remit”/“pardon”/“extinguish”/“retrospectively vary” the order for spousal maintenance and/or arrears is a substantive issue forming part of the re-hearing. Consequently, I will rule upon that point once I have heard full submissions from counsel. \begin{figure}[h] \centering \includegraphics[width=0.5\textwidth]{image.png} \caption{Acting Judge of the Grand Court} \end{figure} \section{Ruling | 20180405 | Hon. Gunn. J (Actg) | Hurlston & Hurlston} \section{Page 12 of 12}